The Daily Press challenged order that denied access to autopsy photos in murder case

March 01, 2013|By Peter Dujardin, pdujardin@dailypress.com | 247-4749

The Virginia Supreme Court on Thursday sided with the Daily Press in a challenge to a judge's order sealing trial exhibits in a Newport News murder case — ruling that the order was unconstitutional.

Circuit Judge H. Vincent Conway Jr. two years ago denied the newspaper the right to look at a court file in a murder case — including autopsy photographs of the 17-month old child — even though the exhibits had been used at the mother's public trial two months earlier.

Conway, who sealed the file after the Daily Press asked to see it, later modified his order and granted access to most of the file. But he kept the seal on the photographs and an autopsy report, saying the seal would remain in place until later court proceedings had been concluded.

On Thursday, the state Supreme Court vacated that decision, ruling that the entire file should have been open under the U.S. and state constitutions. The court ruled that Conway did not cite a "compelling government interest" in sealing the records, a necessary step in closing off such exhibits.

"The benefits of public access to criminal proceedings have been recognized since before the Magna Carta," the Supreme Court said in a unanimous ruling. "Such access ensures that proceedings are conducted fairly ... and imparts legitimacy to the decisions of our judiciary."

The court added: "Newspapers, such as the Daily Press, serve as 'surrogates for the public.' They are 'the first rough draft of history,' providing immediate descriptions of events as they unfold."

But "to work effectively," the court said, public access to proceedings and documents must be "contemporaneous."

"The newsworthiness of a particular story is often fleeting," said the opinion by Justice William C. Mims. "To delay or postpone disclosure undermines the benefits of public scrutiny and may have the same result as complete suppression."

The Daily Press never had any intention of publishing the photographs of the deceased child. But like other newspapers, the Daily Press often views trial evidence in cases as part of its news gathering, sometimes describing to readers the nature of the evidence or injuries.

In March 2011, reporter Ashley Kelly asked a deputy Circuit Court clerk for access to the file in a case of Lillian Callender. Callender had been convicted of second-degree murder in the death of her 17-month old girl, Angeli, but had not yet been sentenced.

The deputy asked for Conway's guidance before letting Kelly view the file. Conway then called Callender's lawyer and a deputy prosecutor from the Commonwealth's Attorney's Office for their input, and both said they did not want the file turned over.

In a conversation with a reporter at the time, Conway said in part that he was concerned by the sensitive nature of the photographs.

Conway denied the newspaper access to the case file, entering a court order sealing the entire file until the case against Callender and her then-boyfriend, Michael Stoffa — also charged with murder in her daughter's death — were over.

The Daily Press, represented by Hunter W. Sims Jr. from Kaufman & Canoles, pressed the issue in court, asserting that Conway's order was arbitrary and had no legal basis. The paper was concerned about similar seals in the future.

At a later hearing on the issue, Conway acknowledged that his order was "overbroad in sealing the entire file," but he kept the seal on the photographs and autopsy report. Conway said Stoffa's and the state's rights at trial could be impeded if the photographs were to be made public, and voiced concern that the trial exhibits could be damaged.

The Supreme Court said there are certain rare reasons that trial exhibits can be sealed, but that public access "can only be denied upon a strong showing of compelling government interest," and that seals must be "narrowly tailored."

But the high court said Conway's "rationales were speculative and not supported by particularized factual findings." There were other ways of making sure any future jurors weren't tainted, the court said, adding that copies could have been made of the exhibits.

The Attorney General's Office, representing the state, conceded the judge's error, but said the issue was "moot" because the Daily Press could see the file now. But the high court ruled that "the Daily Press was harmed at the time its access was restricted" and the later access "doesn't cure this deprivation."

Sims said the court's ruling "affirms the very limited circumstances under which a court can seal a record of a criminal trial. The right of access to a criminal trial is the most basic part of our justice system."